M. Balasubramaniam vs Gopalakrishna Odayar and Another

M. Thanikachalam, J.—The plaintiff is the appellant.

The subject matter of the suit, an extent of 50 cents comprised in R.S. No. 32/3 situated at Kapparamangalam Circle, Kodavasal Taluk,

belonged to the first defendant. According to the plaintiff, the first respondent had agreed to sell the suit property to him, for a sum of Rs. 15,000

on 15.4.1989, for which he had executed an agreement of sale on which date, he had also received a sum of Rs. 1000 as advance. Under the

agreement, the first defendant had agreed to redeem the mortgage, which was in favour of the second defendant, then agreed to put the plaintiff in

possession, completing the sale transaction, receiving the balance on or before 15.7.1989. In pursuance of the agreement, the plaintiff/appellant

had paid a sum of Rs. 5,000 on 18.4.1989, for which the defendant not only refused to make an endorsement, but also attempted to tear of the

agreement, for which a criminal case has been filed against the first defendant. Despite the fact, the plaintiff has always been ready and willing to

perform his part of the contract, the first defendant failed to perform him part of the contract, due to the ill advice of the second defendant, thereby

compelling the plaintiff to file the suit, for specific performance.

The first defendant had filed a written statement denying the execution of the agreement contending that he had executed a hand letter, after

obtaining a loan of Rs. 1,000 without knowing the contents of the document and that he never agreed to sell his property to the plaintiff, since the

same was sold to third parties, further denying the subsequent payment of Rs. 5,000 also, thereby praying for the dismissal of the suit.

The second defendant claiming that he is in possession and enjoyment of the suit property, in pursuance of an agreement dated 30.8.1986,

having paid a sum of Rs. 10,000/- as sale consideration, repudiated the case of the plaintiff, further claiming that benefits u/s 53(A) of the Transfer

of Property Act.

The learned District Munsif, considering the rival contentions of the parties, the oral evidence and the documentary evidence, has come to the

conclusion, that the first defendant had agreed to sell the suit property in favour of the plaintiff on 15.4.1989, which is valid and enforceable, that

the second defendant has failed to prove the agreement dated 30.6.1986 and, therefore, he is not entitled to retain the possession of the suit

property, that the plaintiff is liable to pay only a sum of Rs. 9,000 as sale consideration and that on payment of the said amount, the plaintiff is

entitled to a decree for specific performance. Thus concluding, a decree was granted on 15.11.1991 under which, the plaintiff was directed to

deposit a balance of Rs. 9,000 within two months.

The second defendant, aggrieved by the decree and judgment of the trial Court, has preferred an appeal before the District Court,

Nagapattinam in A.S. No. 71 of 1992, questioning the correctness of the lower Court''s verdict on various grounds. The learned District Judge,

formulating the point whether the agreement dated 15.4.1989 is true, then analysing the evidence available on record, coupled with the

probabilities and other attending circumstances also, came to the conclusion that Ex.A-1 is not proved, which should follow that the plaintiff is not

entitled to a decree for specific performance. He was further held that the sale agreement in favour of the second defendant viz., Ex.B-1 is true and

valid and the non-examination of the witness by name Anbazhagan has not affected the case of the second defendant. In this view, he had set aside

the decree and judgment granted by the trial Court, by allowing the appeal, the dismissing O.S. No. 325 of 1990, which is under challenge in this

second appeal.

This Court, while allowing the appeal, had formulated the following substantial questions of law:

(1) Whether a document executed contrary to the mandatory provision of Rule 6(2) of the Indian Stamp Rules is valid in law?

(2) Whether the findings of a criminal Court can be relied upon in a collateral proceeding in the civil Court?

(3) Whether notice to the occupier is necessary when a sale agreement is entered into in respect of land, which such occupier is occupying?

Heard the learned counsel for the appellant Mr. Srinath Sridevan and the learned counsel for the respondents, Ms. K.M. Nalinishree.

The learned counsel for the appellant submitted that the decree and judgment rendered by the First Appellate Court is not sustainable on the

following grounds viz.,

(i) that the First Appellate Court has not set aside the findings of the trial Court as contemplated under the C.P.C. and as held by the Apex Court,

whereas without setting aside the findings, an independent conclusion has been reached, which is not permissible, since the First Appellate Court

has failed in its duty;

(ii) that when the execution of the agreement is admitted by the executants himself, viz., the first defendant, the finding of the First Appellate Court,

that the agreement is not proved is erroneous, unsustainable; and

(iii) that the alleged earlier agreement in favour of the second defendant is invalid, since certain provisions of the Indian Stamp Rules has been

violated in this case.

On the above basis, elaborating the same, taking me through the pleadings also to certain extent, a strenuous argument was submitted to dislodge

the findings of the First Appellate Court, thereby to restore the decree and judgment of the trial Court.

The learned counsel for the respondents, countering the above argument submitted, that there is no plea as required under the Act, regarding

the readiness and willingness of the plaintiff, to say, that he had performed his part of the contract, that the plaintiff-appellant had failed to prove the

passing of consideration as claimed, that there is nil evidence or no evidence to prove, that the plaintiff was always ready and willing to perform his

part of the contract, and that the admission of the signatures of the second defendant in a document would not amount to the execution of the

document and the First Appellate Court, considering all these facts, had set aside the decree and judgment of the trial Court, further considering

the valid agreement executed by the first defendant in favour of the second defendant, which deserves acceptance, not setting aside. In this view,

supporting the reasonings assigned by the First Appellate Court, the learned counsel for the respondents would contend, that the appeal deserves

its dismissal.

The original agreement said to have been executed by the first defendant in favour of the plaintiff was not produced before the trial Court,

whereas only a copy was produced and exhibited as Ex.A-1. The reason for not producing the original is stated. According the plaintiff, the

original agreement was filed in a Criminal case, which had arisen, due to the attempt made by the first defendant to tear the same, when the plaintiff

insisted for endorsement after paying a sum of Rs. 5,000. This explanation appears to be unacceptable. Admittedly, the criminal case has come to

an end; acquitting the first accused and the same was not challenged before the higher forum. Therefore, the plaintiff ought to have taken back the

original statement from the criminal Court and should have filed the same before the trial Court, in order to find out whether the agreement is

stamped properly, if not whether the stamp duty penalty has been collected or not. Though this kind of defence has not been raised, as rightly

submitted by the learned counsel for the appellant, while attacking Ex.b-1, if the document is not properly stamped for not drawn in the stamp

papers standing in the name of the executants or the purchaser, then it may not be a valid document. Therefore, in the absence of original

document, a doubt would arise whether Ex.A-1 could be enforced or not. However, as seen from the records, when Ex. A1 was marked, the

same was not objected to. Though the first defendant had filed the written statement, it seems, he has not gone into the box, questioning the

correctness of Ex.A-1. Only in this view, ignoring the absence of original of Ex.A-1, the case has to be decided.

The contention of the plaintiff in the plaint, that the first defendant had executed an agreement, though attempted to be challenged by the

defendants in their separate written statements, to give life to the averments contained in the written statement of the first defendant, he might have

gone into the box and supported the same. In the written statement, the signature of the first defendant in the agreement was admitted, whether be

signed knowing the contents of the agreement or otherwise. Only the first defendant could speak about that he had subscribed. But for the reasons

not known, he avoided the box. Therefore, accepting the oral evidence of P.W.I and the pleadings, it should be held, Ex.A-1 is an agreement

executed by the first defendant in favour of the plaintiff/appellant, agreeing to convey the suit property, for the consideration stated therein. This

finding alone will not certainly relieve the plaintiff from proving his readiness and willingness, as well as the payment of consideration under Ex.A-1.

If these two things are further proved, then the Court can exercise its discretionary power, ordering the executants, to execute the sale deed, not

otherwise. Before going into this question, let me see whether the judgment rendered by the First Appellate Court is not valid on the ground that it

failed to set aside the findings rendered by the trial Court.

The learned counsel for the appellant, in order to have strength for his submission, that the judgment rendered by the First Appellate Court is

not sustainable, since it had not given reason, how the trial Court was wrong, relied on a decision of this Court in Palanisamy Servai (died) and

Others v. Veerabadran Servai (died) and Others, (2002) 1 TNLJ 32 and another decision of this Court in B. Parvathy Vs. Ramakrishna Mission

and Others, In the latter case, the learned Judge relying upon a decision of the Supreme Court in Santhosh Hazari v. Purushottam Tiwari (Dead)

by LRs. (2001) 2 MLJ (SC) 69 : (2001) 1 Supreme 642 has held that since the lower appellate Court has not given any finding in its judgment,

how the trial Court has committed error, the judgment of the First Appellate Court could not be sustained. In this view, the case was remanded to

the lower appellate Court, for fresh disposal. The same procedure is followed by Justice Ramamurthy, J. also in the earlier decision, cited supra.

The Supreme Court in Santhosh Hazari v. Purushottam Tiwari (Dead) by LRs., (2001) 1 Supreme 642 (supra) has given the guideline, how

the First Appellate Court has to deal with the first appeal, that too while reversing the judgment of the trial Court, which reads:

The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the

issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court.

Thus observing, in the case involved in the above decision, the Apex Court has noticed that the First Appellate Court has, in a very cryptic manner,

reversed the finding on question of possession and dispossession as alleged by the plaintiff as also on the question of adverse possession as

pleaded by the defendant. Only in this view, when such a judgment is rendered by the First Appellate Court, it is observed that the First Appellate

Court did not discharge the duty cast on it as a Court of first appeal. But going through the judgment of the First Appellate Court, in this case, it

cannot be said that it is a cryptic judgment, setting aside the decree and judgment of the trial Court, without application of mind or even without

setting aside the findings of the trial Court. True, there is not specific finding then and there regarding the dislodging of the findings of the trial Court.

But in general, it has dealt with the certain extent elaborately also, how the document relied on by the plaintiff was not proved, what are the

discrepancies available - regarding the passing of consideration therein, and how the plaintiff is not entitled to a "" decree for specific performance,

in the absence of proof of his readiness and willingness.

Therefore, in my considered opinion, the judgment rendered by the First Appellate Court will not come within the meaning of a judgment, which

was set aside by the Apex Court in Santhosh Hazari''s case, (2001)1 Supreme 642. Therefore, on the basis that the First Appellate Court has not

specifically set aside the findings rendered by the trial Court, allowing the second appeal or remanding the matter for fresh disposal, would not arise

for consideration, that too considering the absence of pleadings, regarding the readiness and willingness, as well as proof for the payment of alleged

payment, in pursuance of the agreement, in addition the continuous readiness and willingness of the plaintiff from the date one of the agreement,

which are all essential and unavoidable in a suit for specific performance.

As contemplated u/s 16-C of the Specific Relief Act a contract be enforced in favour of a person, who fails to aver and prove that he has

performed or has always been ready and willing to perform the essential terms of the contract, which are to be performed by him other than terms

the performance of which has been prevented or waived by the defendant. In the plaint, there is single sentence regarding this duty which reads:

The plaintiff has always been ready and willing to perform his part of the contract.

Except this, nothing was said, how he had performed the obligation or he was always ready and willing, which was threatened or avoided by the

other party to the contract, viz., the first defendant. The learned trial Judge has not considered this fact and granted a decree, as if the plaintiff has

been always ready and willing or he had performed his part of the contract, which he could have performed under Ex.A-1. This aspect was

considered by the First Appellate Court doubting about Ex.A-1, reversing the finding, in which I am unable to find any error warranting my

interference.

Ex. A-1 recites that the sale consideration payable is Rs. 15,000/, out of which a sum of Rs. 1,000 has been paid as advance, on the date of

agreement, thereby indicating the balance 14,000 has to be paid in future. There is a specific recital in the agreement, for the payment of Rs. 5,000,

in order to discharge the oath said to have been created in favour of the second defendant by the first defendant. Even as per the recitals in Ex.A-

1, that amount was not paid on the date of the agreement i.e. 15.4.1989, whereas it is the case of the plaintiff that the said amount was paid on

18.4.1989. If that is paid, the total sale consideration paid must be Rs. 6,000, leaving the balance of Rs. 9,000. But curiously the agreement reads

that the balance is Rs. 10,000 for taking the sale deed. Considering this inconsistency and the stand taken by the first defendant, Ex.A-1 has been

doubted, though the execution is proved or admitted, as the case may be. The case of the plaintiff appears to be that when he insisted the first

defendant to make endorsement, while paying a sum of Rs. 5.000, the first defendant not only refused to do so, but also attempted to tear the

agreement, resulting in criminal complaints, which also ended in acquittal, not accepting the case of the plaintiff. It may be true, that the decision

rendered by the criminal Court may not be binding, but the conduct of the plaintiff cannot be ignored. If really had the plaintiff paid a sum of Rs.

5,000 on 18.4.1989 and the first defendant refused to make endorsement, then in the ordinary course, the plaintiff ought to have issued a notice for

performance, since the refusal by the defendant made it clear that he is not a willing party to the treatment or he is not willing to perform his part of

the contract. But unfortunately, in this case, no notice has been issued, except preferring a complaint before the Criminal Court, that too u/s

420,1.P.C., which ended in acquittal. Though the agreement is dated 15.4.1989, the suit was filed on 5.11.1990. No explanation is given for the

non-issue of notice. The First Appellate Court, considering the oral evidence of the parties, which failed to satisfy the readiness and willingness of

the plaintiff, as well as the validity of Ex.A-1, has recorded a finding on facts, which is not liable to be disturbed, since it cannot be said that the

finding is perverse or recorded against the evidence available on record. Therefore, the dismissal of the suit, by allowing the appeal, is not liable to

be disturbed.

The learned counsel for the appellant submitted that Ex.B-1, is invalid and on that basis, the second defendant is not entitled to be in

possession of the property. In this case, it is unnecessary on the part of this Court to go into the validity of Ex.B-1, since the plaintiff has to succeed

only on his case, not taking advantage of the weakness or failure on the part of the contesting defendant to prove his case.

Section 2(11) of the Indian Stamp Act defines how a document should be fully stamped. Section 35 says that the instrument not duly stamped

is in admissible in evidence. Rule 6(2) of the Tamil Nadu Stamp Rules 1925 says, every paper on which stamp has been engraved or embossed

purchased by a person or his duly constituted attorney either by act of parties or by operation of law or by status, shall be used, only for the

purpose of executing a document. Admittedly, as seen from Ex.B-1, this stamp paper was not purchased either in the name of the first defendant

or in the name of the second defendant. Therefore, on the basis of the above provisions of law, it appears, this document is not duly stamped and

in this view, though it could be held it is invalid, the same will not support the case of the plaintiff, to succeed in suit for specific performance, since

the readiness and willingness, which are essential to sustain a decree, for specific performance, were not at all proved by the satisfactory evidence,

as concluded by the First Appellate Court.

The learned counsel for the appellant as an alternative plea submitted, that in the case if the plaintiff is not entitled to a decree for specific

performance, he is entitled to the refund of amount, which he had paid. Except Rs. 1,000 the other payment is in dispute, not established. Further,

the plaintiff has not prayed for alternative relief originally, but later also, he has not amended the plaint. As contemplated u/s 22(2) of the Specific

Relief Act, no relief as contemplated u/s 22( 1 )(b) could be granted, unless it has been specifically claimed. Since the plaintiff has failed to claim

the alternative relief, either in the original plaint or by way of amendment, question of granting a decree for refund of sale consideration does not

arise for consideration. For the foregoing reasons, I am unable to find any reason to interfere with the findings of the First Appellate Court and the

appeal deserves to be dismissed, as devoid of merit.

The appeal is dismissed, under the facts and circumstances of the case. No costs.